USPTO Patents Application 09857145

DOCKET NO.: CC-3I84; W01 10USW PATENT

Application No.: 09/857,145

Office Action Dated: November 18, 2003

REMARKS

Background

The pending office action rejected the claims based on Clarke in view of
CarnaudMetalbox and further in view of Schmalbach or purportedly admitted prior art from
Applicant's specification. In the response dated December 9, 2002, Applicant has argued,
first, that the prior art, as a whole, teaches away from the claimed configuration. For
example, the primary reference (Clarke) states it is an object "to facilitate the use of larger
size openings" and that a "'larger opening' is ... in the range of approximately 0.5 to 0.75
square inch." (Clarke col. 2, lines 33-35 & 9-14). Accordingly, Clarke's express teaching
relating to the "larger opening," inter alia, explicitly teaches away from an opening having an
area of less than 0.5 square inches, as recited in Applicant's claim 1. Applicants also explain
in the response of December 9, 2002 the inappropriateness of relying only on the figures of
Schmalbach, as the office action apparently does, for asserting Schmalbach teaches any
aspect ratio.

Applicant in the prior response has argued, second, that the claimed invention
provides unexpectedly beneficial flow characteristics. The pending office action states that
such arguments are not persuasive because, inter alia, the "prior art of embodiment A [of the
graph] would have inherent characteristics as of the claimed invention, i.e. with larger radius
to the side the opening would allow more air into the container and a better flow rate is
obtained." The office action further states that although the teachings of the prior art "do not
teach the flow rate, however, the flow rate characteristics are not being recited in the claims.
Furthermore, the claimed ratio is specifically taught in these references and thus would
inherently have the flow rate as claimed." (emphasis in original). Applicant herein traverses
the rejection and the grounds on which it is based. In addition to the arguments submitted in
Applicant's prior response, Applicant's inventive end produces better inrush characteristics
when the effect of the size of the opening is taken into account, which characteristics
constitute unexpected results.

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DOCKET NO.: CC-3184; W01 10USW PATENT

Application No.: 09/857,145

Office Action Dated: November 18, 2003

Applicant Submits Additional Evidence Of Unexpected Results By Manipulating Data
Already of Record

As explained in the enclosed second Declaration of Mr. Brian Fields, "flow
characteristics upon initially rotating a container (as described on page 2, line 22, et seq., of
the as-filed application) are important parameters in evaluating end performance. I believe
the first peak of a graph of flow rate versus unit time is an important parameter that reflects
inrush characteristics." (Fields Declaration, May 18, 2004, para. 6).

By manipulating the graphical results already of record, Applicant demonstrates
unexpected results with respect to the flow characteristics: specifically, better inrush
characteristics. In particular, the flow rate per unit area of an end having the claimed
configuration has a first peak that is higher than the first peak of either conventional opening.
In this regard, Applicant provides the attached new Graphs 1 and 2, which merely normalize
each of the plots provided in Applicant's response dated December 9, 2002 (Exhibit 1 of
December 9, 2002) by the opening area.

Specifically, the y-axis magnitudes of each plot of Exhibit 1 of December 9, 2002 are
multiplied by the ratio of the opening area of the base end (that is, 0.450 sq. in.) to the
opening area of the particular plot's end to produce the scale on the left side of the graph. For
example, each of the y-axis magnitudes (using the scale on the left side of the graph) for the
end of Plot D having an opening area of 0.487 sq. in. is multiplied 0.924 (that is,
0.450/0.487). (Fields Declaration, May 18, 2004, paras. 3 & 4). The scale on the right side
of the attached Graphs 1 and 2 shows the data of Exhibit 1 of December 9, 2002 divided by
the opening area of the particular end to produce y-axis magnitudes of flow rate per unit area.
For example, each of the y-axis magnitudes (using the scale on the right side of the graph) for
the end of plot D having an opening area of 0.487 sq. in. is divided by 0.487 sq. in. (Id.). The
result is a plot of normalized flow rate on the y-axis versus unit time on the x-axis. Ignoring
dimensions, the shape of the plots generally represent flow rate per unit area versus unit time.
(Fields Declaration, May 18, 2004, para. 5).

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DOCKET NO.: CC-3184; W01 10USW

Application No.: 09/857,145

Office Action Dated: November 18, 2003

PATENT

The enclosed graph represents the flow characteristics for the following opening
configurations:

Plot Color Title °P en ! n f, ^

Area (in ) Ratio

A Pink ^ 2LC ! E . 0.596* 1.47

Normalized

B Black Std202.450 0.450 1.1*

C Red 202SELOE.450 0.450 1.61

_ _ . 202 SE LOE .487 ft A Qn t - 1

D Blue XT , 0.487 1.51

Normalized

* indicates a parameter that is outside the ranged claimed in the present
application.

As shown in attached Graph 1, the magnitudes of the first peaks of normalized flow
rate (or flow rate per unit area) are significantly higher for inventive ends C and D compared
with peaks for the conventional ends A and B. Because a large magnitude peak generally
corresponds to a beneficial inrush characteristic (Fields Declaration, May 18, 2004, para. 6),
the high initial peak values of the inventive, claimed ends demonstrate that Applicant's
solution achieves the result of enhancing flow characteristics through a relatively small
opening. (Fields Declaration, May 18, 2004, para. 7).

Graph 2 is the same as graph 1, except the plot for conventional end B is omitted.
The conventional end A (pink) has an aspect ratio of 1.47 and an opening area of 0.596 sq. in.
Inventive end D, in contrast, has an aspect ratio of 1.51 and an opening area 0.487 sq. in.
Ignoring the change in aspect ratio of ends A and D (the aspect ratio of opening A is only
2.7% smaller than that of end D), the larger opening area of conventional end A yields a
decreased first peak in flow rate per unit area compared with that of end D. The peak of
inventive end D is approximately 13% higher than the peak of conventional end A. The
increased peak of flow rate per unit area of inventive end D is unexpected, and indicates an
improved efficiency of flow. Such improved efficiency occurs in the inventive end having
the claimed aspect ratio and an opening area below 0.5 sq. in., compared with a prior art end
having a larger opening area.

The unexpected nature of the improved flow efficiency ~ characterized by the initial
flow rate peaks (that is, improved inrush characteristic) — of Applicant's claimed ends is

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DOCKET NO.: CC-3184; W01 10USW PATENT

Application No.: 09/857,145

Office Action Dated: November 18, 2003

evident from the examiner's own statements. The first office action states, regarding
Applicant's arguments for patentability, "Mr. Fields's statement that the increase in flow rate
is due to the geometry of the opening is absurd and contrary to the laws of physics.
Manning's equation Q = VA dictates the rate of flow has a direct relationship on the area (A)
and velocity (V)." (Office Action, February 27, 2003, page 4).

Despite the office action's true statement of hydrology, the attached graph indicates
that Mr. Field's discovery is an improvement that is not easily predicted and is unexpected
according to previously understood views in the field.

Because the graph provided herein is evidence of unexpected results, the pending
claims are allowable regardless whether the flow characteristics are recited in the claims.

Applicant adds new claims 7 through 10, which further distinguish the claimed
invention over the cited art. For example, clam 7 recites that the "end exhibits a higher first
peak of flow rate per unit opening area compared with the first peak of flow rate per unit
opening area of an end having an aspect ratio of 1.47 and an opening area of 0.596 square
inches and compared with the first peak of flow rate per unit opening area of an end having
an aspect ratio of 1.1 and an opening area of 0.450 square inches." Such claim and the other
new claims are supported by the as-filed Figure 3 and page 8 of the specification. Contrary to
the assertion in the office action, the prior art references do not inherently have the claimed
flow characteristics, as the enclosed plots make clear.

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DOCKET NO.: CC-3184; WOilOUSW

Application No.: 09/857,145

Office Action Dated: November 18, 2003

PATENT

CONCLUSION

Applicant submits that the claims are in condition for allowance based, inter alia, on
Applicant's evidence of unexpected results: improved inrush characteristics (after the
variable of opening area is accounted for) and flow efficiency characterized by higher peak
flow rates per unit area compared with conventional configurations. Accordingly, Applicants
request favorable consideration. If the examiner determines that a telephone conversation
would further the prosecution of this case, he is invited to telephone the undersigned at his
convenience.

Woodcock Washburn LLP
One Liberty Place - 46th Floor
Philadelphia PA 19103
Telephone: (215) 568-3100
Facsimile: (215) 568-3439

Date: May 18,2004

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